Vicarious liability of the bank for the negligence of its officers and employees, and the right to compensation under the Indian Contract Act, 1872 and the Indian Electricity Act, 1910.

M. Y. EQBAL, J.

( 1 ) PETITIONER filed the instant writ application seeking issuance of an appropriate writ declaring that the respondents bihar State Electricity Board is not entitled to demand any bank commission/bank collection charges from the petitioner with respect to its electrical connection because payment made by the petitioner with respect to the said electrical connection by cheques drawn in favour of the Board at the bank situated in the headquarter of the office of the Assistant Electrical Engineer, Electric supply Division, Dhanbad and further for a direction upon the respondents Board to calculate and work out such bank collection charges illegally realized from the petitioner and refund/adjust the same which is sought to be realized by the Board from the petitioner under the head of delayed payment of energy bills.

( 2 ) PETITIONER is having one of its colliery at Chasnala in the district of Dhanbad and it was having High Tension Electrical Connection. The petitioner used to pay electric bills by cheques drawn in favour of the Board and payable at the headquarter of the Assistant Electrical Engineer, Dhanbad with a view to avoid collection charges of those cheques/drafts.

( 3 ) PETITIONERS case is that as per the instruction of the Board the petitioner had drawn cheques payable in the headquarter of the concerned Electrical Engineer, dhanbad in order to avoid any collection charges and payable to the bank. As per the said instruction, it was obligatory on the part of the concerned respondent to deposit the aforesaid cheques given by the petitioner at the bank within the headquarter of the concerned Assistant Electrical Engineer but the respondents either purposely or due to mistake, deposited all those cheques in the bank outside the headquarter of the Assistant electrical Engineer. Consequently, petitioner received a bill for the month of June 1999 from the Board raising demand of Rs. 5,41,394/- on account of bank commission/ bank collection charges and also delayed payment surcharge levied therein. Petitioner immediately raised objection by letter dated 15-7-99 and in reply thereof respondent/ board asked the petitioner to accept the bank commission/charge of Rs. 5,41,394/- which was charged by the bank in the bill of june, 1999.

( 4 ) RESPONDENT/board appeared and filed counter-affidavit stating inter alia that petitioner has been paying the energy bills through cheques drawn in favour of the respondent/board and payable at State Bank of India, Dhanbad Branch, Dhanbad. Since the State Bank of India is not the Outstation bank for the office of the Assistant Electrical Engineer, the said bank while clearing the cheques of the petitioner used to charge from the respondent-Board, bank commission and the same is ultimately charged in the bill of the petitioner. It is stated that the said bank commission/collection charge realized by the bank from the respondent-Board from February, 1997 to march, 1999 was charged in the energy bills of the petitioner raised in the Month of June, 1999. Respondents annexed copy of the chart showing bank commission charged by the bank from February, 1997 to March, 1999 as Annexure-A to the counter-affidavit.

( 5 ) FOR the first time the case was heard on 16-12-2002 when this Court was sought to see Annexure-A to the counter-affidavit which is the details of the bank commission. It appeared that for one cheque dated 25-2-97 the amount of commission charged by the bank was Rs. 11,686/ -. Similarly for some cheques commission charged goes to rs. 38,000/ -. This Court therefore directed the Board to file supplementary affidavit. Relevant portion of the order dated 16-12-2002 is reproduced herein below :"it is rather very shocking to see Annexure A which is the details of the bank commission charged from the bank. It appears that one cheque dated 25-2-97, the amount of commission charged by the bank has been shown as Rs. 11,686. For some cheques the commission has been charge